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Victory for whistleblowers

CORNWALL - Last week's guilty plea by the city has been claimed as a major victory for whistleblowers.

Charges laid against Cornwall by the province were the first to hold an Ontario municipality to account for retaliation against an employee.

The city admitted to disciplining Glen Stor Dun Lodge worker Diane Shay after she reported a case of suspected resident abuse to the Ministry of Health and Long Term Care. In court last week, Cornwall was fined $15,000 and ordered to pay a victim surcharge.

"This is the first time the ministry has charged a long-term care home licensee for retaliating against its employee for making a disclosure to an inspector," said the ministry's media relations co-ordinator David Jensen in an email.

He said the charges show the province takes "the protection of whistleblowers very seriously."

Shay's lawyer, Fay Brunning, released a statement last week, praising the ministry's decision to prosecute the city.

"I am glad to see the city has finally done the right thing by pleading guilty to the charges," said Shay in the release, calling the legal wranglings a "horrendous ordeal".

"It is my hope that we can all go forward from here," she said.

Shay found out about an incident of alleged abuse at the municipally-run Lodge in May 2008. She asked human resources manager Robert Menagh to report it to the ministry, as required by the province, but she was told not to get involved.

She took her information to the ministry anyway, just a day after then-administrator Donna Derouchie also filed a report.

Jensen said they conducted an investigation, but because the abuse was reported after the mandatory time period, the Lodge was given a notice of "unmet standards."

"The home was required to submit a compliance plan to the ministry to ensure they reported unusual occurrences, which would include incidents of abuse, to the ministry in accordance with the ministry's requirements," he explained.

Chief administrative officer Paul Fitzpatrick said the Lodge was only one day late in filing the account, and had to provide the ministry with assurances that any future incidents are reported on time.

He also said the abuse was never proven after internal and police investigations, though an employee was disciplined for "improper procedure".

Coun. Glen Grant, who was on the lodge board at the time of the incident, said staff have learned from the mistake.

"It's obvious it was the wrong thing to do," he said of the tardy report. He said policies are now in place to ensure the problem isn't repeated.

"It should have been there in the first place," he said. "As far as the other issues, the whistleblowing goes, I sure don't agree with the way it was handled."

"I'm always concerned, whenever you're dealing with employees, that they get the fair benefit of the doubt," added Coun. Denis Thibault, who currently serves on the board.

Menagh originally faced the same charge as the city, but it was dropped when Cornwall pled guilty.

"It's not very good for the reputation of the City of Cornwall," said Grant.

But Thibault said he agrees with the city's decision to plead and avoid a costly trial.

"I'm not suggesting there had been anything wrong done by anybody," he said. "My opinion is that it came down to dollars and cents. Do you want to take more money out of the taxpayers' pocket and potentially still lose...or cut your losses? If it was free, maybe we would have gone in a different direction."

The charges fell under the Home for the Aged and Rest Homes Act - replaced in 2010 by the Long Term Care Homes Act, which includes improved coverage for employees who blow the whistle on their employers.

"The court must send a strong message to those who may report abuse - employees, visitors to homes, residents themselves or families of residents - that the court takes this seriously and will not allow retaliation for reporting resident abuse," said prosecutor Deanna Exner, a lawyer with the Ministry of the Attorney General.

"As an employee and nurse, Ms. Shay tried to do the right thing and to comply with her ethical and professional obligations," she added.

The Registered Nurses Association of Ontario released a statement lauding the result of the "precedent setting" case.

"Ms. Shay did the right thing and stood up for the rights of residents who deserve dignity and protection," said Doris Grinspun, RNAO executive director. "This is an important decision for nurses and the people we care for. It enables us to speak out and protect residents without fear of retaliation."

"I am not the first nurse who has been put in this position and I will not be the last," said Shay. "It is professionals like nurses who are given the responsibility to ensure (residents') safety. To do so, we must be protected from personal attacks and discipline including termination in order to fulfill our moral, ethical and legal obligation to them."

"I sympathize with the employee who was put through that," said Grant about the case. "Sometimes you believe you're doing the right thing and you end up getting scolded."